MID-ATLANTIC SURGICAL ASSOCIATES v. ROBERT DENT

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0573-09T1

MID-ATLANTIC SURGICAL

ASSOCIATES,

Plaintiff,

v.

ROBERT DENT,

 

Defendant/Third-Party

Plaintiff-Appellant,

and

BARBARA DENT,

Defendant/Third-Party

Plaintiff,

v.

HORIZON BLUE CROSS BLUE SHIELD

OF NEW JERSEY,

Third-Party Defendant,

and

TEAMSTERS LOCAL 945 BENEFITS FUND,

Third-Party Defendant-

Respondent.

_________________________________________________

November 4, 2010

 

Argued September 21, 2010 - Decided

 

Before Judges Wefing and Payne.

 

On appeal from Superior Court of New Jersey,

Law Division, Union County, Docket No. L-4218-08.

 

David H. Lande argued the cause for

appellant (Gill & Chamas, LLC, attorneys; Mr. Lande, on the brief).

 

Bruce D. Leder argued the cause for

respondent (Cohen, Leder, Montalbano & Grossman, LLC, attorneys; David Grossman, on the brief).

PER CURIAM

On December 2, 2004, defendant/third-party plaintiff, Robert Dent, an employee of Onyx Waste Services, was injured when he slipped on oil and fell while making a delivery at the premises of another company. He filed a petition in the Workers' Compensation Division on January 24, 2005 seeking temporary disability and medical benefits and alleging "lumbar strain and sprain, right pleural effusion-infection." By letter dated April 21, 2005, Dent's employer declined payment of any benefits for "hospitalizations of December 13, 2004 forward"1 and suspended temporary disability benefits. The workers' compensation matter remains unresolved.

Following his employer's denial of workers' compensation benefits, Dent submitted a claim for medical benefits to the self-funded welfare fund maintained by his union, Teamsters Local 945 (the Fund). Additionally, Dent filed a third-party action for damages arising from his fall, eventually receiving a recovery in settlement of $10,000,000. The terms of that settlement have been sealed.

The Fund initially paid benefits in the amount of $85,933.71. However, upon Dent's refusal to agree to reimburse the Fund from any recovery he obtained in his personal injury or workers' compensation cases, the Fund declined to provide further benefits.2 A considerable sum remains unpaid.

On September 19, 2008, plaintiff, Mid-Atlantic Surgical Associates, filed suit against Robert and Barbara Dent in the Special Civil Part seeking payment of outstanding bills in the amount of $15,149.41. In a third-party action against the Fund and the Fund's claims administrator, Horizon Blue Cross Blue Shield of New Jersey, the Dents sought payment of Mid-Atlantic's and other provider's allegedly outstanding medical bills. Thereafter, the matter was transferred to the Law Division, and subsequent to that, Barbara Dent and Horizon Blue Cross Blue Shield of New Jersey were dismissed from the action. Both remaining parties sought summary judgment, which was denied. However, upon the renewal of those motions, the motion filed on behalf of the Fund was granted on August 28, 2009, and on September 25, 2009, Mid-Atlantic's claim was transferred to the Division of Workers' Compensation for resolution pursuant to N.J.S.A. 34:15-15. In granting summary judgment, the court rejected Dent's argument that the Fund should be required to provide interim benefits, subject to potential reimbursement by the workers' compensation carrier, while a determination on his workers' compensation claim remained pending.

On appeal, Dent renews his argument that the Fund is liable for interim benefits while his workers' compensation action remains unresolved. The Fund disputes his claim, arguing that its plan unambiguously excludes benefits for

[s]ervices for any sickness, disease or injury arising out of or in the course of employment and for which benefits and/or compensation are wholly or partially available under any Workers' Compensation Law, Occupational Disease Law or similar legislation whether or not the person asserts his or her rights under such legislation and whether or not there are recoveries against third parties for damages.

 

See LaPollo v. Hosp. Serv. Plan of N.J., 113 N.J. 611, 616 (1989) (finding "little ambiguity" in substantially similar policy language).

Dent responds to the Fund's position by claiming that the motion judge failed to consider that the exclusion was inapplicable because workers' compensation benefits were not "available" to Dent, having been denied by his employer and its workers' compensation carrier. Dent does not address the fact that his workers' compensation matter remains unresolved after six years in large measure because his actions have impeded its resolution. Alternatively, Dent argues, the term "available" should be deemed ambiguous, and it should be construed against the Fund. In this regard, Dent seeks to distinguish LaPollo because, in the context of a common-law claim by a minor against his employer for injuries sustained in a work-related accident, an action by minors authorized by N.J.S.A. 34:15-10 as an alternative to a workers' compensation proceeding, the Court held that "the fact that an exclusionary clause in an insurance policy is unambiguous does not make it necessarily enforceable." Id. at 616. However, that language was dictum, since the Court concluded that the exclusionary clause should be given effect. Id. at 617. Moreover, we find that the public policy concerns arising in the context of recovery of benefits by a child who has chosen not to pursue his workers' compensation remedies are inapplicable to the present matter.

Dent then presents his principal argument that he is entitled to interim benefits from the Fund, regardless of the plan's language, as the result of precedent established in connection with automobile insurance personal injury protection (PIP) benefits, that commenced with Solimano v. Consolidated Mutual Insurance Company, 146 N.J. Super. 393 (Law Div. 1977). In that case, following the plaintiff's injury in an automobile accident, Consolidated Mutual initially provided PIP benefits, but then discontinued them, claiming that the statutory collateral source offset available to an insurer pursuant to N.J.S.A. 39:6A-6 for benefits "collectible under workers' compensation insurance" obviated the need for it to pay PIP benefits. Id. at 395. Plaintiff thereupon filed suit against Consolidated Mutual to compel such payment.

The trial judge granted the relief sought by plaintiff. In doing so, the judge rejected Consolidated Mutual's position that plaintiff was required first to dispose of the possibility of collecting workers' compensation benefits. Id. at 396-97. He held that, until a right to a deduction for workers' compensation benefits was established, Consolidated Mutual remained the primary source of recovery for plaintiff. Id. at 397. He reasoned in language specific to the No Fault context in which the claim arose:

Clearly, an adoption of the PIP carrier's position would fly in the face of the policy behind the No-Fault Act. From its inception, the public policy surrounding the legislation has been "to provide appreciable reparation for all New Jersey accident victims promptly, fairly, and efficiently." See State of New Jersey Automobile Insurance Study Commission Report to the Governor and Legislature, Reparation Reform for New Jersey Motorists, xii (1971). This policy was implemented by the Legislature in N.J.S.A. 39:6A-16, which provides that the No Fault Act "shall be liberally construed so as to effect the purpose thereof."

 

In interpreting that section this court has stated:

 

It is apparent that the purpose of the act is to provide for prompt payment of medical bills, lost wages and property damage without having to await the outcome of protracted litigation. [Harris v. Osorio, 125 N.J. Super. 468, 469 (Law Div. 1973).]

 

[Solimano, supra, 146 N.J. Super. at 397.]

Although the judge recognized the carrier's statutory right to a deduction for workers' compensation benefits, id. at 398, and he also recognized that the workers' compensation law provided, in N.J.S.A. 34:15-15.1, that an employer found liable for workers' compensation payments is responsible to reimburse any insurance benefits previously paid by a PIP carrier, he found that a mechanism to procure that repayment was nonexistent. Id. at 399-400. As a consequence, the judge held "that a PIP carrier must be permitted to initiate, in its own name, a petition in workmen's compensation to determine what amount, if any, is collectible from the 'collateral source,' i.e., the compensation carrier." Id. at 401. See also Aetna Cas. & Sur. Co. v. Para Mfg. Co., 176 N.J. Super. 532, 535-37 (App. Div. 1980) (holding that the workers' compensation court had jurisdiction over a claim by a PIP carrier, which was required under the No Fault Law to pay all benefits when due, to enforce its statutory right to deduct collectible workers' compensation benefits from the PIP benefits that it had paid); Speiser v. Harleysville Ins. Co., 237 N.J. Super. 507 (App. Div. 1990) (holding that a PIP carrier had a primary obligation to pay as they became due the reasonable and necessary medical bills incurred by a workers' compensation recipient who utilized a non-authorized medical provider, and that the carrier's right to reimbursement was subject to a determination in the Workers' Compensation Division, in an action instituted by the PIP carrier, that the treatment was authorized), certif. denied, 121 N.J. 647 (1990).

In 1983, the Legislature amended the collateral source rule of N.J.S.A. 39:6A-6 to provide, in accordance with Solimano and its progeny:

If an insurer has paid those benefits and the insured is entitled to, but has failed to apply for, workers' compensation benefits or employees' temporary disability benefits, the insurer may immediately apply to the provider of workers' compensation benefits or of employees' temporary disability benefits for a reimbursement of any benefits pursuant to [N.J.S.A. 39:6A-4 and -10], medical expense benefits pursuant to [N.J.S.A. 39:6A-3.1] or benefits pursuant to [N.J.S.A. 39:6A-3.3] it has paid.

 

[L.1983, c. 362 9, effective October 4, 1983.]

 

Dent additionally notes our decision in Olivero by Olivero v. New Jersey Manufacturers Insurance Co., 199 N.J. Super. 191 (App. Div. 1985), a case in which a PIP carrier resisted payment of benefits as the result of the availability of workers' compensation coverage for injuries to a child struck by an automobile while delivering newspapers. In that decision, we determined that, upon payment of full PIP benefits when due, the PIP carrier could intervene in a pending workers' compensation proceeding to obtain reimbursement, if warranted. Id. at 199. However, as in the preceding cases, we emphasized the No Fault context in which the plaintiff's claim arose. We thus prefaced our opinion by stating:

This matter is a classic example of the precise situation that the Legislature intended to avoid when it enacted the New Jersey Automobile Reparation Reform Act (No-Fault), N.J.S.A. 39:6A-1, et seq. to provide payment for benefits for automobile accident victims. The Act requires that personal injury protection benefits (PIP) under an automobile liability policy shall be payable as the loss accrues; it permits the PIP carrier to receive reimbursement for collectible workers' compensation benefits.

 

[Id. at 193.]

In the present appeal, Dent seeks to apply the PIP precedent that we have just discussed to a claim against the Fund. We do not accept Dent's arguments, determining that no evidence has been presented that would equate the Fund a self-insured multi-employer welfare plan as defined by the Employee Retirement Income Security Act (ERISA), 29 U.S.C.A. 1104(a)(1)(D) with a PIP carrier so as to require that the Fund serve as Dent's primary insurer during the pendency of his workers' compensation proceeding.

Throughout this litigation, Dent has adamantly taken the position that the medical conditions arising after his December 2, 2004 work-related accident were causally related to that accident. As such, his remedy lies in the Workers' Compensation Division, which is "the ultimate source of recovery for benefits of employees injured in compensable . . . accidents." Olivero, supra, 199 N.J. Super. at 198 (citing Wagner v. Transamerica Ins. Co., 167 N.J. Super. 25, 34 (App. Div. 1979), certif. denied, 81 N.J. 60 (1979)); see also Univ. of Mass. v. Christodoulou, 180 N.J. 334, 345 (2004); Speiser, supra, 237 N.J. Super. at 510, Aetna v. Para Mfg., supra, 176 N.J. Super. at 536; N.J.S.A. 34:15-49 (vesting original jurisdiction of all claims for workers' compensation benefits in the Division of Workers' Compensation); N.J.S.A. 34:15-15 (requiring the employer to furnish medical, surgical and other treatment to employees injured in workplace accidents).

Although N.J.S.A. 34:15-15 states, in circumstances in which the employer refuses to provide treatment, that the employee may secure such treatment, subject to a later determination by the workers' compensation court as to whether the employer shall be the source of payment, nothing in that provision can be read to suggest that an employee benefit plan must fill the payment gap. Moreover, neither ERISA nor the State's health insurance statutes impose the requirement of full and immediate payment that is applicable to PIP carriers as the result of this State's requirement of prompt payment for medical expenses pursuant to the No Fault Law, and no legislative history suggests that the policies supporting full and prompt no-fault payments by PIP carriers are applicable in the present context.

On appeal, Dent acknowledges that the workers' compensation action, instituted on his behalf in January 2005, has been effectively stayed pending resolution of the present matter. Dent excuses his failure to exhaust his remedies in the Workers' Compensation Division, including such rights as are afforded by N.J.S.A. 34:15-15.3 (emergent medical care), by claiming that he is protecting the Fund's right to reimbursement, pursuant to N.J.S.A. 34:15-15.1, of payments that the court might order the Fund to make. However, we see no need for Dent to turn the workers' compensation scheme on its head in order to protect the rights of the Fund, which is represented by counsel and may protect its rights as it finds appropriate.

Affirmed.

1 It is unclear from the record whether medical expenses were incurred prior to December 13. Although the parties agree that Dent had an accident in the course of his employment, a dispute exists as to whether medical conditions that Dent developed after the accident were causally related to the accident.

2 However, we have been advised that money was withheld from the proceeds of settlement of the third-party case in the amount of the lien asserted by the Fund as the result of its payments, and that amount remains in the trust account of Dent's counsel, pending resolution of this matter.